[Federal Register Volume 89, Number 62 (Friday, March 29, 2024)]
[Notices]
[Pages 22128-22131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06762]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD826]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael 
Bridge Restoration Project in Richmond, California

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of renewal incidental harassment 
authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS has issued a renewal incidental harassment authorization 
(IHA) to California Department of Transportation (Caltrans) to 
incidentally harass marine mammals incidental to Phase II of the 
Richmond-San Rafael Bridge Restoration Project in Richmond, California.

DATES: This renewal IHA is valid from April 1, 2024 through March 30, 
2025.

FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, Renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-california-department-transportations-richmond-san-rafael. In case of problems 
accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are promulgated or, if the taking is limited to harassment, an IHA is 
issued.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). NMFS must also prescribe requirements pertaining to 
monitoring and reporting of such takings. The definition of key terms 
such as ``take,'' ``harassment,'' and ``negligible impact'' can be 
found in the MMPA and NMFS's implementing regulations (see 16 U.S.C. 
1362; 50 CFR 216.103).
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed 1 year for each reauthorization. In the notice of proposed IHA 
for the initial IHA, NMFS described the circumstances under which we 
would consider issuing a renewal for this activity, and requested 
public comment on a potential renewal under those circumstances. 
Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year 
renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical, or 
nearly identical, activities as described in the Detailed Description 
of Specified Activities section of the initial IHA issuance notice is 
planned or (2) the activities as described in the Description of the 
Specified Activities and Anticipated Impacts section of the initial IHA 
issuance notice would not be completed by the time the initial IHA 
expires and a renewal would allow for completion of the activities 
beyond that described in the DATES section of the notice of issuance of 
the initial IHA, provided all of the following conditions are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA).
    2. The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

History of Request

    On July 31, 2023, NMFS issued an IHA to Caltrans to take marine 
mammals incidental to Phase II of the Richmond-San Rafael Bridge 
Restoration Project in Richmond, California (88 FR 51778, August 4, 
2023), effective from August 1, 2023 through March 30, 2024. On 
February 7, 2023, NMFS received an application for the renewal of that 
initial IHA. As described in the application for renewal, the 
activities for which incidental take is requested consist of activities 
that are covered by the initial authorization but will not be completed 
prior to its expiration. As required, the applicant also provided a 
preliminary monitoring report (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-california-department-transportations-richmond-san-rafael) which confirms

[[Page 22129]]

that the applicant has implemented the required mitigation and 
monitoring, and which also shows that no impacts of a scale or nature 
not previously analyzed or authorized have occurred as a result of the 
activities conducted. The notice of the proposed renewal IHA was 
published on March 4, 2024 (89 FR 15549).

Description of the Specified Activities and Anticipated Impacts

    Under the initial IHA Caltrans proposed to conduct construction 
activities to restore a portion of the Richmond-San Rafael Bridge. 
Prior to restoration work Caltrans would install a debris containment 
system to ensure contaminants from construction are not deposited into 
San Francisco Bay. Caltrans and NMFS concluded that during the 
deployment and retrieval of the containment system disturbance (i.e., 
Level B harassment) may occur to harbor seals hauled out at Castro 
Rocks. Castro Rocks is an important haulout location for harbor seals 
that is close to the portion of the Richmond-San Rafael Bridge where 
construction work is occurring.
    Under the initial IHA Caltrans took 19 days to deploy the debris 
containment system and during this time protected species observers 
(PSOs) did not observe any disturbance of harbor seals hauled out at 
Castro Rocks. Caltrans will be unable to remove the debris containment 
system before the expiration of the initial IHA. Therefore, this 
renewal will allow for the removal of the debris containment system and 
completion of the restoration project. NMFS authorized 9,000 takes of 
harbor seals by Level B harassment under the initial IHA, for the 
installation and removal of the debris containment system. This renewal 
will authorize a portion of the number of takes authorized in the 
initial IHA based on the days remaining to complete the work.
    All documents related to the initial IHA and the applicant's 
request for renewal are available on our website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-california-department-transportations-richmond-san-rafael.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is authorized here may be found in the Notices of the Proposed (88 
FR 41920, June 28, 2023) and Final IHAs (88 FR 51778, August 4, 2023) 
for the initial authorization. The location, timing, and nature of the 
activities, including the types of equipment planned for use, are 
identical to those described in the previous notices. This renewal IHA 
is effective from April 1, 2024 through March 30, 2025.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Federal Register notice of the Proposed IHA (88 FR 41920, June 28, 
2023) for the initial authorization. NMFS has reviewed the monitoring 
data from the initial IHA, 2023 draft Stock Assessment Reports, 
information on relevant Unusual Mortality Events, and other scientific 
literature, and determined there is no new information that affects 
which species or stocks have the potential to be affected or the 
pertinent information in the Description of the Marine Mammals in the 
Area of Specified Activities contained in the supporting documents for 
the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat may be found in the Federal Register 
notice of the Proposed IHA (88 FR 41920, June 28, 2023) for the initial 
authorization. NMFS has reviewed the monitoring data from the initial 
IHA, recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and other scientific literature, and 
determined that there is no new information that affects our initial 
analysis of impacts on marine mammals and their habitat.

Estimated Take

    The initial IHA assumed a daily occurrence rate of 300 harbor seals 
per day on Castro Rocks. Caltrans expected the installation and removal 
of the debris containment system to take approximately 30 days. 
Therefore, the initial IHA authorized a total of 9,000 takes by Level B 
harassment to complete the installation and removal of the debris 
containment system. Under the initial IHA Caltrans installed the debris 
containment system over a 19 day period and no takes by Level B 
harassment of harbor seals were observed during that time. The removal 
of the debris containment system will not be completed before the 
initial IHA expires.
    This IHA renewal will authorize take by Level B harassment of 
harbor seals during the removal of the debris containment system. It is 
expected to take a total of 10 days to remove the debris containment 
system once the construction activities are completed. NMFS assumes a 
similar daily occurrence rate of 300 harbor seals per day on Castro 
Rocks which over the 10 days of remaining work will equate to a total 
of 3,000 takes by Level B harassment of harbor seals under this renewal 
IHA. A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Federal Register 
notices of the Proposed IHA (88 FR 41920, June 28, 2023) and Final IHA 
(88 FR 51778, August 4, 2023) for the initial authorization.

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are identical to those included in 
the Federal Register notice announcing the issuance of the initial IHA, 
and the discussion of the least practicable adverse impact included in 
the Federal Register notice of the Proposed IHA (88 FR 41920, June 28, 
2023) remains accurate. The following mitigation measures are required 
for this renewal:
     Seasonal Work Restrictions: installation or removal of the 
debris containment system must not occur between Piers 52-57 from April 
1-July 31 due to the pupping and molting period of harbor seals;
     Work must not take place outside of the containment system 
on the bridge between Piers 52-57 from April 1 to July 31;
     A non-disturbance buffer will be established within 400 
feet (121 meters) of Castro Rocks on the south side of bridge;
     Staging of barges will not be allowed in the project area;
     Routes for watercraft to reach work locations will be 
predetermined in consultation with the project biologist to avoid 
harassment or take of marine mammals hauled out at Castro Rocks; and
     No piles may be driven or vibrated to create staging 
locations for any watercraft. Barges and vessels will be tethered to 
the existing concrete bridge piers.
    The following monitoring and reporting measures are required for 
this renewal:
     Caltrans will monitor to collect data on marine mammal 
behavior, counts of the individuals observed, and the frequency of the 
observations. Caltrans will collect sighting data and observations on 
behavioral responses to construction for marine mammal

[[Page 22130]]

species observed in the region of activity during the period of 
construction. All observers will be trained in the identification of 
marine mammals and marine mammal behaviors;
     PSOs must be independent observers (i.e., not construction 
personnel). All PSOs must have the ability to conduct field 
observations and collect data according to assigned protocols, be 
experienced in field identification of marine mammals and their 
behaviors. Caltrans must submit their resumes to NMFS for approval;
     Biological monitoring must occur 5 days prior to the 
Project's start date, to establish baseline observations;
     Observation periods will encompass different tide levels 
and hours of the day. Monitoring of marine mammals around the 
construction site will be conducted using binoculars as necessary; and
     The location of the PSOs will be at a monitoring platform 
positioned on Pier 55 of the Richmond-San Rafael Bridge, at the closest 
pier of the Richmond-San Rafael Bridge to Castro Rocks. Pier 55 is 
approximately 21 meters from the nearest rock at Castro Rocks harbor 
seal colony.
    Caltrans shall submit a draft report to NMFS within 90 days of the 
completion of marine mammal monitoring, or 60 days prior to the 
issuance of any subsequent IHA for this project (if required), 
whichever comes first. The annual report will detail the monitoring 
protocol, summarize the data recorded during monitoring, and estimate 
the number of marine mammals that may have been harassed. If no 
comments are received from NMFS within 30 days, the draft final report 
will become final. If comments are received, a final report must be 
submitted up to 30 days after receipt of comments. All PSO datasheets 
and/or raw sighting data must be submitted with the draft marine mammal 
report.
    Reports shall contain the following information:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period including: (a) what type of restoration work is 
being completed, and (b) the total duration of work completed;
     PSO locations during monitoring; and
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including sea state and any other relevant weather 
conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
    Upon observation of a marine mammal, the following information must 
be reported:
     Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting;
     Time of sighting;
     Identification of the animal(s) (e.g., genus/species, 
lowest possible taxonomic level, or unidentified), and PSO confidence 
in identification;
     Distance and location of each observed marine mammal 
relative to the bridge restoration work;
     Estimated number of animals by species (min/max/best 
estimate);
     Estimated number of animals by cohort (adults, pups, and 
group composition, etc.);
     Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such 
flushing or head posturing); and
     Detailed information about implementation of any 
mitigation measures, a description of specified actions that ensured, 
and resulting changes in behavior of the animal(s), if any.

Comments and Responses

    A notice of NMFS' proposal to issue a renewal IHA to Caltrans was 
published in the Federal Register on March 3, 2024 (89 FR 15549). That 
notice either described, or referenced descriptions of, the Caltrans' 
activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
estimated amount and manner of take, and proposed mitigation, 
monitoring and reporting measures. NMFS received no public comments on 
the proposed IHA renewal notice.

Determinations

    The activities conducted under this potential renewal will be a 
subset of the activities authorized under the initial IHA. 
Specifically, this renewal will authorize take incidental to the 
removal of the debris containment system. Removal of the debris 
containment system is expected to take 10 days. Take incidental to this 
activity was originally authorized under the initial IHA but Caltrans 
could not complete the removal of the debris containment system before 
the initial IHA expired. In analyzing the effects of the activities for 
the initial IHA, NMFS determined that the Caltrans' activities will 
have a negligible impact on the affected species or stocks and that the 
authorized take numbers of each species or stock were small relative to 
the relevant stocks (e.g., less than one-third of the abundance of all 
stocks). There is no new information that affects NMFS' determinations 
supporting issuance initial IHA or this renewal. The mitigation 
measures and monitoring and reporting requirements as described above 
are identical to the initial IHA.
    NMFS has concluded that there is no new information suggesting that 
our analysis or findings should change from those reached for the 
initial IHA. Based on the information and analysis contained here and 
in the referenced documents, NMFS has determined the following: (1) the 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the authorized takes represent small 
numbers of marine mammals relative to the affected stock abundances; 
(4) Caltrans' activities will not have an unmitigable adverse impact on 
taking for subsistence purposes as no relevant subsistence uses of 
marine mammals are implicated by this action, and; (5) appropriate 
monitoring and reporting requirements are included.

National Environmental Policy Act

    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS determined that the issuance of the 
initial IHA qualified to be categorically excluded from further 
National Environmental Policy Act review. NMFS has determined that the 
application of this categorical exclusion remains appropriate for this 
renewal IHA.

Endangered Species Act

    No incidental take of Endangered Species Act (ESA)-listed species 
is authorized or expected to result from this activity. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this action.

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Renewal

    NMFS has issued a renewal IHA to Caltrans for the take of marine 
mammals incidental to conducting Phase II of the Richmond-San Rafael 
Bridge Restoration Project in Richmond, California valid from April 1, 
2024 through March 30, 2025.

    Dated: March 26, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-06762 Filed 3-28-24; 8:45 am]
BILLING CODE 3510-22-P